Orissa

Jajapur

CC/124/2022

HITENDRA GANPAT WAGHMARE - Complainant(s)

Versus

HDFC ERGO GENERAL INSURANCE CO. LTD. - Opp.Party(s)

21 Jul 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION : JAJPUR : ODISHA.

Consumer Complaint No. 124 / 2022.

Date of filing Complaint   :-    28.09.2022

Date of hearing              :-       12.05.2023

Date of Order                  :       21.07.2023.            

Dated the 21st day of July’ 2023.

Hitendra Ganpat Waghmare,

Near Hotel Dayal Residency, Back side of

Babamani Auto,Jajpur Road, Kanheipur

Pin. 755019 , Dist:- Jajpur,                                            .  .  .  .  Complainant.    

                                    Versus.

            HDFC ERGO General  Insurance Co.Ltd, 2^nd floor, OSL Automobiles PVT.Ltd

            OSL Tower,iii, Badambadi,Cuttack.......  Opp. Party.

P R E S E N T S.

                        1.    Smt.Susmita Mishra,President.

                        2.    Sri Bibekananda Das,       Member (I/c).

               Counsels appeared for the parties.                           

For the Complainant           In person . 

For the Opp. Party             Sri S.K.Mishra, Advocate & associates.

J U D G M E N T.

MRS SUSMITA MISHRA, PRESIDENT  :

            This  C.C.Case No.124 of 2022 is taken up today for order. The complainant in this case is ,Hitendra Ganpat Waghmare has filed this Consumer complaint through E-dakhil ( Consumer Commission On-line Application portal) under section-35 of the Consumer Protection Act,2019 on 28.09.2022, seeking the following reliefs:-

“ may direct the O.P to pay the expenses approximately of Rs.19,000/- occurred in this accident as well as a penalty of Rs.10,000/- for harassment to the complainant”.

Brief facts of the case:

            The present complaint has filed by the complainant alleging deficiency in service on the part of the O.P. The brief facts of this case is that the complainant is  the registered owner of the vehicle bearing Model No.Tata ALTROZ vide Regd.No.OD-34-N-3762 which is insured under the O.P (HDFC ERGO General Insurance Co.Ltd,Cuttack). It is stated by the complainant that on 01.05.2022/ 10.30 A.M  the above said vehicle met an accident on N.H.49,at Kanjipani Ghati,near Nippo Village,Dist.Keonjhar. It is also stated by the complainant none of the family members including the driver(himself) of the said vehicles got injured in this accident. It  is also stated by the complainant when the accident occurred he had  tried to inform  immediately to the O.P through Toll Free Number : 1800-700-700 which was given on Insurance policy of the vehicle, but the number shows invalid. It is also stated by the complainant that then the complainant had arranged one alternate family shifting vehicle by his own. It is further stated by the complainant that the Insurance Company will provides “ Towing Assistance for accident and break down of the vehicle including Alternate Travel Arrangement,”  as per the insured company Rule. The complainant had tried his best to touch the insured company but all goes in vain, caused harassment. After that the complainant arranged all commodities himself which costs approximately Rs.19,000/- ( Rupees Nineteen thousand) only. Finally, the complainant went to office of the O.P-Insurance Company and claimed the expenses occurred which should be paid by the O.P as per the Insurance Company Rules. Again it is stated by the complainant that the C.E.O of the O.P company directly denied for payment caused mental agony and harassment to the complainant. Hence, due to deficiency in service on the part of the O.P-Insurance company the complainant filed this Consumer Complaint petition through E-dakhil portal of this Commission.

  ( Notice of complaint petition was issued to the O.P by this Commission on 10.10.2022.After receipt of notice the O.P appeared through his learned advocate and filed his written version)

The O.P in its written statement denied the contents of the complaint petition except some admitted facts and took the plea that there was no deficiency in services. It is admitted by the O.P- Insurance Company that a private Car policy Bundled bearing No.231120429405 6700000 was issued to the complainant on 10.09.2021 for vehicle( Four wheeler car) Model No.Altroz-XZ(O) petrol bearing Regd.No. OD-34-N-8762.( Copy of the Insurance policy schedule and policy wording attached as Annexture-A & B) . It is admitted by the O.P that on 01.05.2022 this O.P had received a claim intimation regarding accidental loss to the above said insured vehicle from the complainant. The O.P had appointed a surveyor to ascertain the extent of loss incurred by the vehicle. After received of the survey report ,the complainant’s claim was rendered admissible and duly paid after making deductible by this O.P. It is also submitted by the O.P that the toal amount paid of Rs.2,88,918/-(Rupees Two Lakh Eighty Thousand Nine Hundred Eighteen) only vide claim No.C 230022045742 to the complainant on the basis of depreciation amount as affixed by the Indian Motor Tarrif. ( Copy of claim Form, settlement Letter, survey report with Assessment attached as Annexture-C,D & E). The O.P further submitted that the claim of the complainant has been duly paid by this O.P, then the question of indemnifying the complainant further does not arise and hence this O.P can not be made liable to make payment for the extra amounts charged. Learned counsel for the O.P regarding the deficiency in service placed reliance on the decision of Hon’ble Supreme Court In Ravneet Singh Bagga Vrs. KLM Royal Dutch Airlines( 2000) 1 SCC-66 in which it is observed that:

The burden of providing the deficiency in service isupon the person who alleges it.”

Further O.P submits that in reply to para-5 and 6 of the complaint petition that the alleged claim / compensation is frivolous,vexatious and devoid of the actual facts. Hence the present complaint is not maintainable and the same may be dismissed.

The complainant in support of his case has filedXerox documents along with the petitionand marked as C-1 to C-6 . On the other hand, the O.P has produced the documents as true copy attested and marked as Annexture-A ( pgs.1-3) ,Annexture-B (Pgs.1-9) , Annexture-C (pg.1),Annexture-D (pgs 1-2) and Annexture-E (pgs 1-4) and close the evidence.

 We have heard the complainant in person and the learned advocate for the O.P and have carefully gone through the record of the case with documents therein. In view of the above assertion and counter assertions from both the sides we are inclined to disposed of the present dispute as per our observation and to frame the following issues :

Issue No.1

            Whether the complainant has shifted the accident car from the accident place according to his own sweet will or under compulsion by the act of the O.P.?

            It is orally argued by the O.P that the complainant has shifted the damaged car without information or approval of the O.P to the nearest Authorised Service Center. As against such objection from the side of O.P, we have perused the record which “ car” met an accident, the complainant had tried to intimate regarding accident through Toll Free No: 1800 700 700  to the O.P, which is provided by the O.P through the policy No.2311204294056700000/ dt. 10.09.2021 to the complainant. But this is a invalid  Toll Free No, which is not tally with the private Car policy –Bundled by O.P. ( Copy attached as C-1 and Annexture-A) . So, the complainant has shifted the damaged car under compulsion by the act of the O.P from Kanji Pani Ghati,Keonjhar to Jajpur Road, Jajpur due to non-available of Authorised Service center there. ( Copy attached as C-6)

Issue No.2

            Whether the complainant is entitled for “ Towing assistance for accident & break down and for alternate travel arrangement “ or not after Surveyor’s report. ?

            Surveyor’s report is the most vital issue on which the O.Ps have repudiated the insurance claim of the complainant. It is stated by the O.P, in para-2 and para-3 of the written version that the O.P received a claim intimation from the complainant regarding accident loss to his vehicle on 01.05.2022. O.P had engaged a surveyor to ascertain the extent of loss incurred by the vehicle. After assessment of the Surveyor , the claim of total amount of Rs.2,88,918/- ( Rupees Two Lakh Eighty-  eight Thousand Nine Hundred and Eighteern) only, duly paid by the O.P vide claim No : C 230022045742 to the complainant after making compulsory deductibles and on the basis of the depreciation amount as per Indian Motor Tariff. Hence , this O.P  can not  be made liable to make payment for the extra amounts charged by the complainant. ( Annexture-C,D & E) .

  As against such objection from the side of the O.P, we have perused the report of the surveyor ( dated 28.08.2022) which reflects that the surveyor assessed the loss at Rs.2,88,918/-( Rupees Two lakh Eighty - eight Thousand Nine hundred and Eighteen) only for labour ,parts,depreciation,salvage including Rs.1500/- for Towing charges/ spot and Rs.1,000/- for policy excess (Annexture-E).  But it is observed that in this surveyor report, there is neither took any necessary photographs of the damaged vehicle ( Car) / spot nor any signature of the Authorized  Surveyor as an Engineer or a Technical expert. Report given by the surveyor carries enough value. This is a vital piece of evidence. In the instant case, though F.I.R was made by the complainant. Moreover, it is admitted by the complainant that the assessed loss amount had paid by the O.P and received by the complainant except the “ Towing assistance for accident and break down and Alternate travel arrangement”. But in this regard, both the parties were not produced any documents before this Commission.

            In fact, surveyor’s report is a vital document on which Insurance claim to be settled in accordance with the terms and conditions of the policy, since they are to be appointed to access the actual loss sustained by the vehicle. Though the surveyor is appointed by the O.P and admitted by the O.P in his written version. As a result, we are declined to accept such surveyor’s report without any strong proof. As such we ignore such objection of the O.P

Issue No.3

            Whether the O.P is deficient in providing service and what relief the complainant is entitled to get ?

            In the present case, the complainant strongly argued that his grievance is non-payment of “ Towing assistance for accident  and break down and Alternate Travel Arrangement “ as per the terms and conditions of the policy provided by the O.P, not the full Insurance claim due to loss occurred in accident. It is the duty of the O.p-Insurance company that before granting Insurance claim, they must have checked all relevant documents properly. Since  O.P- Insurance Company got the vehicle inspected through their surveyor. In this case, Surveyor has not prepared his report in proper procedure. Now O.P cannot escape from the liability. Hence,  it is justify to allow the amount claimed by the complainant only for the “ Towing assistance for accident and break down” which was made by the complainant under compulsion by the act of the O.P, but not for the “ Alternate travel arrangement” to shift the family members. It is the duty of the complainant to shift his family member from the place of accident not the duty of O.P- Insurance Company.

            From the Supra discussion conclusion is drawn that the O.P.-1 is deficient in his service. As the O.P is deficient in  service, accordingly the complainant is entitled to get relief. Hence, the order.

O R D E R

            Keeping in view of the aforesaid discussion, accepting the complaint of the complainant, the O.P- Insurance company is directed to pay the amount of Rs.14,000/- ( Rupees Fourteen Thousand) only  towards “ Towing Assistance for accident and Break down”  for the insured vehicle vide Regd.No.OD-340N-8762,which met with an accident and damaged during Insurance period, covered under policy No.231120429056700000/ dt.10.09.2021 to the complainant within one month from the date of receipt of this order, failing which the complainant is at liberty to file execution proceeding before this Commission as per the provision of C.P.Act,2019. Accordingly the Consumer complaint is allowed on contest against the O.P.

            Issue extract of the order to the parties for compliance.

            Judgment pronounced in the Open Commission on this the 21st   day of July’ 2023.